Melendy v. Ferson , 51 N.H. 419 ( 1871 )

Ladd, J.

We are unable to see, upon the case stated, how the second interrogatory and answer were material. If the payment by the defendant to the plaintiffs was, by the express terms of the contract between them, made to depend upon whether lumber depreciated or not, the effect of such depreciation on the value .of the plaintiffs’ milling interest at Chambers island was of no consequence.. The question on that part of the case was, whether the plaintiffs were entitled to i’ecover the sum they had put into the conqern ; and the defendant claimed that this was to depend, not on the fact concerning which the witness was asked his opinion ip the seqond interrogatory, but on the other' fact, whether or not lumber depreciated. So far as the case shows, therefore, we think the second interrogatory and answer were properly excluded.

It appears to have been a material inquiry on the trial, whether lumber did in fact depreciate after the agreement entered into in August, 1867.

The lumber manufactured by the firm was sold in Racine and Chicago. It cannot be, contended but that the state of the market at either of those places during the time covered by the inquiry would be admissible. The witness was a commission lumber merchant at Racine, and would be likely to know, and his answer shows he did know how that fact was. The first question excluded simply calls for such knowledge as he had on that subject, and we can see no reason why it was not admissible as the statement of a material fact within his knowledge. As the defendant’s attorneys well say in their brief, “ This witness’s knowledge of the depreciation of lumber is like the knowledge of a witness as to the difference in length of two sticks of timber; ” and their conclusion seems to be sound and in.point, that a witness may be allowed to testify as to such difference in length where it is material, even if he has forgotten or never knew the length of both or either.

No objection was made to the form of the interrogatory, and we are of opinion that the evidence should have been admitted.

Verdict set aside.